SIDDIQSONS TINPLATE LTD. VS NATIONAL TARIFF COMMISSION, 2018 PTD-ANTI-DUMPING-APPELLATE-TRIBUNAL 1831 (2017)

Anti-Dumping Duties Act (XIV of 2015)---

----Ss. 18, 20, 23, 24, 27, 37, 39, 43 & 70---Anti-Dumping Duties Rules, 2001, R.7---Importing/dumping goods causing material injury to the domestic industry---Investigation for said dumping and injury---Imposition of anti-dumping duty---Respondent claimed to be the domestic manufacturer and moved application before 'National Tariff Commission' (NTC) to the effect that imported goods were being dumped in Pakistan, thereby causing material injury to the domestic industry---National Tarrif Commission, after investigation, found sufficient evidence of alleged dumping of goods in question and injury being caused to the domestic industry---Commission, after making final determination, concluded that imposition of anti-dumping duty was needed to prevent material injury being caused to domestic industry---Appellant had contended that provisional anti-dumping duty was imposed, without affording adequate hearing---National Tarrif Commission stated that ample opportunity was provided to all the parties including the appellant in accordance with rules and Anti-Dumping Law and plea of the appellant that preliminary determination was made without affording adequate hearing to the appellant, was not tenable---Appellant further contended that goods in question were two different products and were not liable to anti-dumping duties---No reason existed to accept that said goods were as two different products, especially when both were capable of serving the same purpose or similar end uses having their identical practical utility---Appellant also contended that manufacturers, were of not being capable of producing the goods in question---Manufacturer were not only capable of producing the goods of the specification required by the appellant/importer, but also produced and supplied the same to their Customers including to the appellant in commercial quantity---Said position was not only supported by the sale invoices provided by the respondents to the National Tarrif Commission and the Tribunal, but was also affirmed during Commission's team, on the spot investigation---No reason existed to accept the stance of the appellant that the domestic industry was not capable of manufacturing the goods of required thickness---Contention of the appellant that the dumped product was identical as the same was classified under one PCT headings, was not understandable---National Tarrif Commission in its detailed investigations, took into account various aspects of the case on the basis of the information collected in that behalf---Before imposing even provisional duty for only four months period, the Commission first ensured that goods produced by the domestic industry and imported were comparable in terms of physical and chemical characteristics, products' specifications, chemical formulation and usage and tariff classification of the goods etc.---Investigated product and domestic like products were technically and commercially identical---Anti-dumping duties were imposed on the basis of detailed investigation carried out by the Commission---Creation of separate PCT sub-heading for goods would not be having any impact with reference to levy of anti-dumping duty on the dumping products involved in the matter---Plea of the appellant that separate PCT Heading of goods could affect the outcome of investigation carried out by Commission had no substance---Issues raised by the appellant in its appeal before the Tribunal did not warrant any interference in the final determination report issued by the National Tariff Commission (NTC) in the matter---Appeal being devoid of merits was dismissed, in circumstances.

Najeeb ur Rehman Abbasi for Appellant.

Ahmed Sheraz, Chief Legal Advisor, NTC for Respondent No.1.

Saif Ullah Khan for Respondents Nos.2 and 3.

Dates of hearing: 12th, 19th October and 3rd November, 2017.

JUDGMENT

AHMED OWAIS PIRZADA, MEMBER.---This judgment disposes of the appeal under section 70 of the Anti-Dumping Duties Act, 2015, filed by Messrs Siddiqsons Tinplates Ltd., against notice of final determination report dated 19.01.2017 and levy of definitive Anti-dumping duties on dumped imports of Cold Rolled Coils / Sheets into Pakistan originating in and / or Exported from the People Republic of China and Ukraine.

2.Facts of this matter gleaned from record, briefly stated, are that the National Tariff Commission (hereafter to be referred to as "The Commission"), received an application on 11.06.2015 under section 20 of the Anti-Dumping Duties Ordinance, 2000 from Messrs Aisha Steel Mills Limited, Karachi, respondent No.2 herein, claiming itself to be the domestic manufacturer of the Tinplates producing Cold Rolled Coils / Sheets (the investigated product). The applicant stated, in brief, that the imported quantities originated in and/or exported from exporting countries namely People's Republic of China and Ukraine (hereafter to be referred to as "the exporting countries") were being dumped in Pakistan and thereby the same caused material injury to the domestic industry producing "Domestic like product". The investigated product involved herein is with thickness of 0.15 - 2.50 mm. The Commission initiated anti-dumping investigation on 16.07.2015 on the afore-mentioned application within terms of section 23 of the Ordinance and set the period of investigation for the dumping and the injury, as follows:-

For determination of dumping:01.04.2015 to 31.03.2015

For determination of injury:01.04.2012 to 31.03.2015

3.The Commission made Preliminary Determination order on 13.01.2016 under section 37 of the Act, aggrieved there-against, imposing provisional anti-dumping duty on the investigated product. Further, the Commission in pursuance of section 39 ibid issued Final Determination Report on 13.01.2017, impugned herein, concluded that it was needed to prevent injury being caused to the domestic industry in accordance with section 43 of the Anti-Dumping Duties Act.

4.Being aggrieved, the appellant preferred instant appeal under section 70 of the Anti-dumping Act, 2015 on the following grounds:--

i)The provisional anti-dumping duty was imposed without affording adequate hearing to the appellant.

iiOther factors, mentioned in the impugned order, were neither explained nor mentioned as to how the same could not apply to the case in hand.

iii)The product imported by appellant was not like the one in question before the respondent No-1.

iv)Tin Mill Black Plate Coils / Specific Cold Rolled Coils suitable for tinning of 0.30 mm thickness and lower were not produced locally, therefore, not liable to anti-dumping duties.

v)The finding of the respondent that both the distinct products were classified under one of the PCT (sic).

vi)The fact that Messrs Aisha Steel Mills Ltd was not producing Tin Mill Black Plate Coils / Specific Cold Rolled Coils suitable for tinning of 0.30 mm thickness or lower was acknowledged by the representative of Messrs Aisha Steel Mills during his presence in the hearing, which was further ratified by their attorney as well during the said proceedings. In this regard a confirmatory letter was sent to the respondent and no rebuttal was ever received.

vii)The decision was taken not on the basis of proceedings, held during the final hearing but on the basis of some afterthought / reconsideration best known to respondent No.1.

It has been prayed that the Hon'ble Tribunal may set-aside the impugned order for levy of Anti-dumping duty on appellant's import.

5.In the comments on behalf of respondent No.1, it was stated that the application under sections 20 and 24 of the Anti-Dumping Duties Act, 2015 was received from Messrs Aisha Steel Mills Ltd which was examined by the Commission in accordance with section 23 of the Act and it was found that there was sufficient evidence of alleged dumping of Cold Rolled Coils/Sheets into Pakistan from the exporting countries, causing material injury to the domestic industries. Accordingly, the notice was issued under section 27 of the Act to initiate investigation. The Commission made a preliminary determination in its investigation on January 13th, 2016 in terms of section 37 of the Act. In pursuance of section 39 of the Act, the Commission made final determination on 13th January, 2017, concluding that imposition of anti-dumping duty was needed to prevent material injury being caused to the domestic industry in accordance with section 43 of the Act. It was stated in the comments that the Commission established that the investigated product was Cold Rolled Coils / Sheets or primary and secondary quality with the thickness of 0.15-2.50 mm and width of above 600 mm, which the respondent No.2 was manufacturing. It was stated that after publication of notice of preliminary determination, the Commission held hearing on 18th October, 2016 which was attended by the interested parties and the Commission kept the record of hearing on public file, maintained in this behalf. During the hearing, the applicant and International Steel Industry Ltd not only claimed that the domestic industry had capability to produce the thickness ranging from 0.15 - 0.30 mm but they had also produced and sold the same to its customers including Messrs Siddiqsons Tinplates Ltd. The final determination was made after considering views and comments from the interested parties including Messrs Siddiqsons Tinplates Ltd. It was further stated that Aisha Steel Mills Ltd. clarified its position by writing a letter to the Commission on November 18th, 2016 that confirmation by the representative of the applicant with regard to its inability to produce the investigated product was the result of some misunderstanding. It was further clarified that the domestic Industry not only had the capability to produce dumped products but also producing and selling it to its customers including Messrs Siddiqsons Tinplates Ltd. Evidence in this regard was also submitted before the Commission. The investigation team of the Commission also conducted On-the-Spot investigation at the office of the applicant and verified the sales figure which showed that Messrs Siddiqsons Tinplates Ltd was one of their main customers of CR Coils of less than 0.30 mm thickness. It was stated in the comments that in accordance with section 18(2) of the Act, the Commission also examined factors other than dumped import of the investigated products which could at the same time cause material injury to the domestic industry. Finally after due consideration, the Commission concluded that the domestic industry did not suffer material injury due to the imports of CR Coils / Sheets from sources other than dumped sources during the period of investigation.

6.In the written comments submitted by Respondents Nos. 2 and 3, it was stated that mere assertion by the appellant that the respondent No.2 did not manufacture the required type of CRC as was used by Messrs Siddiqsons Tinplates Ltd., was not an evidence. Both respondents Nos. 2 and 3 produced Cold Rolled Coils of thickness of less than 0.30 mm and copies of invoices for their sales made to Messrs Siddiqsons Tinplates Ltd., during the period of investigation were provided to the Commission. It was added that the investigation team of NTC, during their On-the-Spot investigation, also confirmed the aforesaid position that Messrs Siddiqsons Tinplates Ltd., was one of their main customers of CR Coils of less than 0.30 mm thickness. It was further stated that due opportunity of hearing was provided to the appellant by the NTC during the anti-dumping proceedings. Statement of Essential Facts was also provided to all the interested parties including the appellant before the final determination, the comments added. It was clarified in the comments that other factors identified in section 18(3) of the Act were duly considered by the Commission in order to ensure the possibility of injury to be caused by other factors. The Commission however concluded that:--

i.The domestic industry did not export, therefore, there is no effect on export performance and productivity ofthe domestic industry.

ii.There was no change in trade restrictive practices and competition between foreign producers other than producers from the Exporting Countries and domestic producers; and

iii.There is no considerable change in technology.

It was, therefore, concluded that the domestic industry did not suffer any material injury due to other factors.

7.It was mentioned in the comments that the product imported by the appellant in the form of CRC was the same as was being produced by the domestic industry. Moreover, it was submitted that the Commission after detailed investigation and hearing the parties rightly determined that the investigated product and the domestic product were like products meaning thereby that product being dumped into Pakistan ranging from 0.15 mm - 2.5 mm was being produced by the domestic industry. In these circumstances, plea of the appellant regarding exclusion of CRC, ranging from 0.15 - 0.30 mm from the scope of investigated product was not justified. It was stated that in response to the appellant's letter addressed to the Commission to exclude the CRC of thickness less than 0.5 mm, the Respondent No.2 wrote a detailed letter to the Commission with the supporting evidence in the form of sales invoices and proved that not only the domestic industry had capacity and capability to produce required specification of the appellant but had also sold such product to the appellant in commercial quantity at different point in time. It was observed that the appellant kept on changing its stance on the thickness of the CRC just to confuse the authorities.

8.While arguing, the learned counsel for the appellant stated that during the public hearing it was submitted by Messrs Aisha Steel Mills that they are not manufacturing the sizes such as 0.14 mm to 0.34 mm which were imported by Messrs Siddiqsons Tinplates Ltd. After public hearing, a confirmatory letter in this regard was sent to NTC by Messrs Siddiqsons Tinplates Ltd. Later on anti-dumping duty was slapped by NTC on 19th January, 2017 through a public notice even on sizes which were not manufactured by Messrs Aisha Steel Mills Ltd., and International Steel Mills Ltd. It was further stated that several attempts to purchase TMBP from Messrs International Steel Mills Ltd., were made but they could not supply the raw material as was evident from International Steel Mill's e-mail placed on record. It was mentioned that NTC was aware of the fact that Messrs International Steel Mills Ltd., and Messrs Aisha Steel Mills Ltd., were not capable of manufacturing/ supplying TMBP/imported by Messrs Siddiqsons Tinplates Ltd., and that was the reason that they wrote a letter to FBR to notify separate PCT headings of TMBP and CRC. It was stated that splitting one PCT heading for the purpose of anti-dumping duty was nothing new. NTC had done it in the past in the case of BOPP Films and it could be done for TMBP and CRC as well. Discussing burden of proof, the learned counsel for the appellant submitted that it lied with Messrs Aisha Steel Mills and Messrs International Steel Mills Ltd., to prove that TMBP of the size from 0.14 mm to 0.3 mm were being manufactured by them in sufficient quantity to get anti-dumping duty slapped on imports of TMBP. The Learned counsel stated that even TMBP imported and used by Messrs Siddiqsons Tinplates Ltd., was not incorporated in the list of Custom General Order No-02/2017 dated 19th April, 2017. The learned counsel also furnished a copy of the Annual Report of Messrs International Steel Mills Ltd, referring its page No-18, wherein it was mentioned that Cold Rolled Steel manufactured by ISL was available in thicknesses ranging from 0.25 mm to 3.0 mm and was offered in a maximum width of 1250 mm. The learned counsel finally submitted that the Hon'ble Tribunal might graciously suspend the notification remanding the case to the National Tariff Commission with the direction that through any public sector Agency following two aspects be ascertained:--

i)Whether Messrs Aisha Steel Mills and Messrs International steel are capable of manufacturing TMBP of the sizes such as 0.14mm to 0.34 mm.

ii)Whether their existing production capacity utilization can meet the requirement of Siddiqsons.

9.The learned counsel for respondents Nos.2 and 3 during the course of arguments provided summaries of the material, sold to the Siddiqsons Tinplates Ltd as an evidence of production of CRC of thickness 0.3 mm or below. It was stated that the invoices in this regard which were also provided to NTC clearly showed that both respondents Nos.02 and 03, produced and sold CRC of thickness less than 0.3 mm and M/s Siddiqsons Tinplate was one of the recipient of their product during the last three years. It was submitted that during the course of investigation conducted by NTC, the appellant had been claiming that both the respondents (domestic industry) were not producing CRC of 0.5 mm thickness (letter dated August 17, 2015 placed at page No. 124 of reply of memo of appeal by private respondents). However, during the hearing held in NTC the appellant changed its stance and started arguing that the domestic industry was not producing CRC of thickness 0.3 mm or below. The learned counsel further stated that lately during hearing before the Tribunal the appellant raised an argument that respondents Nos.2 and 3 were not producing CRC / TMBP below 0.23 mm, which was not mentioned before the NTC previously. In response to the plea taken by the appellant that during the hearing the representative of the respondent confirmed that domestic industry were not producing CRC thickness of 0.30 mm. The learned counsel for the respondents referred to the letter, submitted to the Commission clarifying that not only Messrs Aisha Steel Mills Ltd., had the capability to produce TMBP as per the specifications required by Messrs Siddiqsons Tinplates Ltd., but the Messrs Aisha Steel Mills Ltd., had already sold the same product to Messrs Siddiqsons Tinplates Ltd., and other units in the local market. The learned counsel took the plea that Statement of Essential Facts was not the final document, the Commission provided time of 15 days to file comments / input if any, to all the interested parties in this behalf upon issuance of the Statement of Essential Facts. In its final determination report the Commission noted that domestic industry was not only capable of producing the thickness ranging from 0.15 mm to 0.3 mm but had also sold such product to its customers including Messrs Siddiqsons Tinplates Ltd. It was mentioned that the appellant was free to import CRC from sources other than China and Ukraine without payment of anti-dumping duties. Clarifying the position with regard to the difference between TMBP and CRC, the learned counsel for the respondents submitted that Internationally TMBP was also known as CRC. In this regard, the learned counsel provided chemical composition report of Japanese Industrial Standard (JIS) on Cold-reduced Carbon Steel Sheets and Strips and EDB certificates, showing that there was no difference between TMBP and CRC. Even one of the world's largest steel producer, Arcelormittal also categorized TMBP as CRC or Cold-reduced Steel for which the learned counsel provided an extract from the website of Arcelormittal. The learned counsel stated that the respondents also provided Mill Test Certificate of POSCO for matching specification before supplying Trial Lot to ensure supply of quality material. Learned counsel also referred to Customs General Order (CGO) 02/2017 dated 19th April 2017, wherein PCT number- 7209.180, 7209.1810 and 7209.1890 at Sr. Nos. 270 and 271 mentioned Cold Rolled Coils of Thickness of less than 0.5 mm. As per this CGO, the respondent No-3 was the registered / certified producer of CRC of thickness less than 0.5 mm. On this very ground the learned counsel stated that the Hon'ble Tribunal could not pass any adverse order against the respondents. The learned counsel further stated that TMBP was not mentioned in the CGO and the appellant itself imported CRC and also purchased CRC from the domestic industry for Tinning process which means that the TMBP and CRC was interchangeable product. Learned counsel argued with regard to the scope of anti-dumping investigation that anti-dumping investigation was of Cold Rolled Coils sheets of thickness ranging from 0.15 - 2.50 mm. The NTC carried out on-the-spot verification of the foreign producers / exporters of CRC in the exporting countries and weighted average export price of CRC of thickness of 0.15 mm -2.50 mm from their data. The NTC also determined weighted average normal value of CRC of the same thicknesses from their data as well and calculated the dumping margin. Hence at this stage, reviewing this whole exercise to get out certain thickness of CRC / TMBP from the scope of anti-dumping duties would not be appropriate. The learned counsel further submitted that there was no such provision in the Anti-Dumping Duties Act to get such investigation done by any agency other than NTC. The learned counsel submitted that accepting the plea to change the position came out of the investigation carried out by the NTC would neither be legal nor appropriate. Referring the letter written by NTC to the FBR, the learned counsel stated that the said change would not be having any impact on levy of anti-dumping duty.

10.The learned counsel for NTC (respondent No-1) while responding to the points, raised by counsel for the appellant and respondents Nos. 2 and 3 stated that the investigated product was Cold Rolled Coils / Sheets of primary and secondary quality with a thickness of 0.15 mm 2.50 mm and width of above 600 mm. It was stated that the domestic industry proved through their invoices of sales and transactions, requesting the Commission to impose definitive anti-dumping duty on TMBP / Cold Rolled Coils / Sheets of thickness ranging from 0.15 mm - 2.50 mm by ignoring false claims made by Siddiqson Tinplates Ltd. The learned counsel further stated that the misunderstanding created by the representative of Aisha Steel Mills Ltd that domestic industry could not produce such product was later clarified by Aisha Steel Mills Ltd by writing a letter dated 11th November, 2016 to NTC. The learned counsel submitted that the NTC carried out the whole investigation very carefully, completing all codal / legal formalities. It was further stated that in order to verify information data provided by the applicant (domestic industry) and to obtain further information (if any), officers of the Commission conducted On-the-Spot investigation at the offices of exporters and local manufacturers. It was submitted that the Commission maintained a public file under rule 7 of the Anti-dumping Duties Rules, 2001 to maintain record of the non confidential version of the application, responses to the questionnaires, submissions, notices, correspondence and other documents for disclosure to the interested parties. It was stated by the learned counsel that after having gone through the data / information provided by 13 exporters / producers, it was concluded by the NTC that during the said period of investigation, the said product was being dumped and after completing all legal formalities, anti-dumping duty was imposed on the investigated product.

11.After going through the appeal, comments of the respondents and other documents provided by the parties and hearing their counsel, we reached to the conclusion that the following issues emerged out of this appeal for consideration:--

i)Whether hearing opportunity was duly provided to the appellant during the proceedings in the NTC?

ii)Whether there is a difference between TMBP and CRC?

iii)Whether the domestic industry has been producing TMBP / Cold Rolled Coils ranging from 0.15 to 2.5 mm?

iv)Whether the separate PCT code for TMBP could be helpful to refrain from levying of anti-dumping duty?

The aforesaid issues were examined one by one in detail, summary of which is given as under.

12.The appellant stated in its appeal that the respondent No.1, initiated an anti-dumping investigation on 16th August, 2015 under section 23 of the Anti-dumping Duties Ordinance, 2000 after receiving an application under section 20 of the aforesaid Ordinance on 11th June 2015, lodged by Aisha Steel Mills Ltd., on behalf of domestic industry producing Cold Rolled Coils/Sheets (CRC). Accordingly, it was concluded that the product under investigation was being dumped in Pakistan Market and consequently a provisional Anti-dumping duty was imposed on 13th January, 2016 through a notice of preliminary determination, without affording adequate hearing to the appellant. The learned counsel for the appellant raised this issue before the Tribunal during the course of hearing as well. However, all the three respondents including NTC stated in their written comments as well as during the proceedings in the court that ample opportunity was provided to all the parties including the appellant in accordance with rules and Anti-dumping Law.

13.The issue was looked into in detail and it was noted that on receipt of application from Messrs Aisha Steel Mills Ltd., the NTC examined the accuracy and adequacy of the evidence provided in the application in accordance with section 23 of the Anti-dumping Act and established that there was sufficient evidence of alleged dumping of CRC/Sheets into Pakistan from the exporting countries and consequent material injury to the domestic Industry. Accordingly, the NTC issued a notice of initiation in accordance with section 27 of the Act, which was published in the official Gazette of Pakistan and in two widely circulated Newspapers on July 16th, 2015. Thus, the investigation concerning alleged dumped imports was initiated on July 16th, 2015. Again in pursuance of section 27 of the Act, the Commission notified embassies of the exporting countries at Islamabad of the initiation of the investigation on July 16th, 2015 with the request to forward it to all the exporter / producers involved in production, sales and export of CRC / Sheets from the exporting countries. Copy of the notice of initiation was also sent on July 16th 2015 to known exporters / producers of CR Coils / Sheets from the exporting countries whose addresses were available with the NTC and also sent to known Pakistani importers and the applicant on July 16th, 2015. The NTC sent exporter questionnaire to the exporters, producers from the exporting countries whose addresses were available with the NTC on July 16th, 2015 in order to collect the requisite data and information. The exporter producers from the exporting countries were asked to respond within 37 days of dispatch of the exporter questionnaire. On July 27th, 2015, questionnaire was sent to the Pakistani importers of the investigated product known to the NTC and these importers were asked to respond to the NTC within 37 days of the dispatch of questionnaires. None of the Pakistani importer responded to the NTC and did not provide requisite information. Interested parties were also invited to share their views, comments and submit information (if any) relevant to this investigation within 45 days of initiation of investigation. To accommodate constraints of the parties with regard to their response, the Commission granted extensions in the time period wherever required. In order to verify information data, provided by the applicant and to obtain further information (if any), officers of the NTC conducted On-the-Spot investigation at the office and plant of the applicant from August 27 and 28, 2015. On-the-Spot Investigation at the premises of exporters / producers from China and Ukraine was also conducted from February 22nd - March 3rd 2016 and July 18th - 23rd, 2016 respectively. In addition to the aforesaid, the NTC in accordance with Rule 7 of the rules has established and maintained a public file at its office which remained available to the interested parties for review and copying from Monday to Thursday throughout the investigation. After due consideration with regard to the points, raised by the interested parties and keeping in view the record placed on the file of the NTC, the preliminary determination was made on July 13th 2016 in terms of section 37 of the Act. Accordingly, a notice of preliminary determination was published on the same date in the official gazette of Pakistan and two widely circulated National Newspapers, notifying preliminary determination and imposition of provisional anti-dumping duties on imports of CR Coils / Sheets from exporting countries for a period of four months, effective from the aforesaid dates. A public hearing in this regard was also held on 18th October, 2016 which was attended by the interested parties. The Record of hearing was also placed on the public file for the consumption of interested parties. The aforesaid position clearly indicated that the NTC remained very careful to complete all legal formalities to ensure maximum participation of all interested parties including the appellant. Keeping in view the aforesaid position, the appellant was provided ample opportunity to present its case before the NTC for consideration. In these circumstances, the plea of the appellant that preliminary determination was made without affording adequate hearing to the appellant was neither understandable nor tenable.

14.Coming to the second point raised by the appellant that TMBP and CRC were two different products, the learned counsel for the appellant argued that there was a huge difference between the two like chalk and cheese. It was emphasized by the learned counsel for the appellant that the difference between TMBP and CRC might be appreciated and both the products be categorized separately not only for anti-dumping purposes but for the purpose of Concessionary Notification to be issued by the FBR. It was pleaded that the Tribunal might intervene in this behalf to get it categorized separately, so that the TMBP could be excluded from the category of CRC and its import from other countries could be possible. On the other hand, learned counsel for respondents Nos.2 and 3, differed with the position taken by the learned counsel for the appellant on the ground that after provision of evidence of production of CRC of thickness less than 0.3 mm or below by the domestic industry, the appellant was trying to create confusion before the Tribunal that TMBP and CRC were two different products. It was stated that Internationally TMBP was also known as CRC. Some reports, the details of which were given in the preceding paragraphs were also referred.

15.The appellant in its appeal stated that to produce Tinplates, TMBP / Specific Cold Rolled Coils, suitable for tinning was being imported. In the same appeal, it was stated that the appellant was using specific Cold Rolled Coils suitable for tinning process and importing it with specification required or near to TMBP Coils meaning thereby that both the TMBP and CRC were interchangeable. The NTC after thorough investigation observed in its report that the CR Coils / Sheets produced by the domestic industry and imported from the exporting countries was comparable in terms of physical and chemical characteristics, product specifications, chemical formulation, end uses and Tariff Classification of the goods etc. The FBR while categorizing various locally manufactured goods items for the purposes of Concessionary Notification also opted not to entertain TMBP as a separate product. The learned counsel for respondents Nos.2 and 3 referred two authorities which showed that both TMBP and CRC were one and the same. The learned counsel for the respondents referred chemical composition report of Japanese Industrial Standard (JIS) on cold reduced carbon steel sheets and strips and EDB Certificates, showing that there was no difference between TMBP and CRC. The learned counsel further referred website of the one of the largest steel producer, Arcelormittal, which categorized TMBP as CRC are Cold-Reduced Steel. Learned counsel for the appellant on the other hand could not refer any authority in this regard which could be considered convincing for us to go by his pleading. Even otherwise, we do not see any benefit which could go to the appellant by considering both the products different than each other as the tax authority as well as NTC categorized the product on the basis of its thickness ranging from 0.15 to 2.50 mm and other similar characteristics. In the circumstances stated above, we do not see any reason to accept TMBP and CRC as two different products, especially when both the products were capable of serving the same purpose or similar end uses having their identical practical utility.

16.With regard to the third issue, referred above, the appellant stated in its appeal that respondents were not capable of producing CRC material with thickness lower than 0.3 mm. The learned counsel stated that the representative of M/s Aisha Steel Mills Ltd during the investigation confirmed that there was no local manufacturing of TMBP / Specific Cold Rolled Coils. It was further argued that since the respondents were not producing CRC of the thickness of less than 0.3 mm, the same might be excluded from the preview of this investigation. It was contended that despite several attempts by the appellant to purchase TMBP from the respondents, they could not supply the same. Reliance was also placed on page 18 of the Annual Report (2017) of the Messrs International Steel Mills Ltd., which provided that Cold Rolled Steel manufactured by Messrs International Steel Ltd., was available in thickness ranging from 0.25 to 3.0 mm. The learned counsel for the appellant at the bar also submitted that the matter may be referred through NTC to any public sector agency for investigation to ascertain the facts. The learned counsel for the respondents on the other hand stated that they were not only producing CRC of the thickness of less than 0.3 mm but also supplying to their customers including Messrs Siddiqsons Tinplates Ltd., in commercial quantity at different points in time. It was further added that the aforesaid position was confirmed by the team of NTC during On-the-Spot investigation at the offices and plants of respondents that Messrs Siddiqsons Tinplates Ltd., was one of their main customers of CR Coils of less than 0.3 mm thickness. The respondents also provided sales invoices to the NTC and to this Tribunal as well to confirm the aforesaid position. With regard to the acknowledgment given by the representative of Messrs Aisha Steel Mills Ltd that there was no local manufacturing of TMBP/Specific Cold Rolled Coils, it was clarified that the aforesaid issue raised by the appellant was circulated for comments on which the respondents in their comments stated that they produced CR Coils of thickness of less than 0.3 mm during the period of investigation and Messrs Siddiqsons Tinplates Ltd., was one of their main customers. The learned counsel further added that the Commission in its final report confirmed the aforesaid position. With regard to the point raised by the appellant referring Annual Report of the International Steel Mills that the respondent was manufacturing Cold Rolled Steel thickness ranging from 0.25 mm to 0.3 mm, the learned counsel referred the letter of Messrs International Steel Ltd., dated 2nd November, 2017 addressed to Engineering Development Board in which it was stated that M/s International Steel Ltd can manufacture Cold Rolled Steel for Tinplate manufacturing in thickness below 0.5 mm including 0.15 mm.

17.The position taken by the appellant was examined in detail and it was noted that the respondents were not only capable of producing CRC of the specification required by the appellant but also produced and supplied the same to their customers including Messrs Siddiqsons Tinplates Ltd., in Commercial quantity. The aforesaid position was not only supported by the sale invoices provided by the respondents to the NTC and this Tribunal but was also affirmed during NTC team's On-the-Spot investigation. The NTC in their written statement also confirmed that the acknowledgment given by the representative of Messrs Aisha Steel Mills Ltd., referred above was the result of some misunderstanding which was later on clarified by the respondents, stating that they were not only producing but supplying the same to their customers including Messrs Siddiqsons Tinplates Ltd. Furthermore, documentary evidence was submitted, which was verified by the NTC team and accepted accordingly. Thus, the plea of the appellant to exclude the TMBP/ Specific Cold Rolled Coils of thickness below 0.3 mm from the investigation was also not justified. The contention of the appellant that despite its several attempts to purchase TMBP from Messrs International Steel Mills Ltd., they could not supply the same was not justified as sufficient evidence was available on the record that the appellant kept on purchasing CRC of required specifications for Tinplate manufacturing from the respondents. Plain reading of the Annual Report of Messrs International Steel Mills Ltd., referred to by the appellant revealed that product in thickness ranging from 0.25 - 3.0 mm, manufactured by the Messrs International Steel Ltd., was available in their stock. It was not mentioned anywhere in the report that Messrs International Steel Mills was not capable of producing the product in thickness below than 0.25 mm. The letter written by the M/s International Steel Ltd in this behalf to Engineering Development Board, referred by the respondents, cleared the position informing that Messrs International Steel Ltd was capable to manufacture the investigated product in thickness of below 0.5 mm, including 0.15 mm. No evidence was provided by the appellant, which could be considered as a proof that any such order placed for the product in thickness of 0.15 mm was bounced back. The argument of the appellant that the matter may be referred through NTC to any public sector Agency for investigation cannot be agreed as under the Anti-Dumping Law, only NTC can conduct such investigation. In these circumstances, we find no reason to accept the stance of appellant that the domestic industry was not capable of manufacturing TMBP / Cold Rolled Coils / Sheets of 0.3 mm thickness and lower, suitable for tinning.

18.The issue raised with regard to separate PCT code for TMBP by the appellant has also been examined quite in detail in the preceding paragraphs. The appellant was of the impression that the only reason as to why the product falls within the preview of the proceedings was because both the distinct products were classified under one of the PCT Headings under consideration which did not distinguish between the size range between the range 0.5 mm to 0.3 mm of Tin Mill Black Plate / Specific Cold Rolled Coil Sheets and size over and above 0.3 mm thickness. It was further contended that it was not unprecedented to split one PCT Heading for the purposes of anti-dumping duty as NTC had done it in the past. It was submitted that the same could be done for TMBP and CRC in the case of Messrs Siddiqsons Tinplates Ltd.

19.The contention of the appellant that the dumped product was identified as the same was classified under one of the PCT Headings was not understandable. The NTC in its detailed investigations took into account various aspects of the case on the basis of the information collected in this behalf. Before imposing even provisional duty for only four months period, the NTC first ensured that the CR Coils / sheets produced by the domestic industry and imported from the Exporting countries was comparable in terms of physical and chemical characteristics, products specifications, chemical formulation and usage and Tariff classifications of the goods etc. It was further observed that investigated product and domestic like product were technically and commercially identical. On the basis of detailed investigation carried out by the NTC, definitive anti-dumping duties were imposed. We would like to refer here the letter, written by the NTC to the FBR, wherein it was stated that the NTC had no objection on creation of PCT sub-heading of Tin Mill Black Plate, however, in the same letter, it was clarified that duty on Cold Rolled Coils / Sheets having thickness from 0.15 mm to 2.50 mm and width of above 600 mm would remain the same. We noted that the Sheets of the above referred characteristics having thickness from 0.15 mm to 2.50 mm were the subject of anti-dumping duties in the matter. The contention of the appellant that imposition of duty was because of PCT heading was not justified. It was, therefore, understood that creation of separate PCT sub-heading for TMBP would not be having any impact with reference to levy of anti-dumping duty on the dumped product involved in the matter. We, therefore, do not see any substance in the plea of the appellant that separate heading of TMBP could affect the outcome of the investigations, carried out by the NTC.

20.Before concluding the examination and analysis, we would like to address another point, raised by the appellant in its appeal regarding "other factors" examined by the NTC during their investigation. The appellant observed that while finalizing the report, the NTC neither explained why other factors were taken into consideration nor mentioned that how the same did not apply to the case in hand. In accordance with section 18 (2) of the Act, the NTC also examined factors, other than dumped imports of the investigated product, which could at the same time caused material injury to the domestic industry in order to ensure that possible injury caused by other factors was not attributed to the dumped imports. However, after detailed examination the NTC concluded that there was no contraction in demand of CR Coils / Sheets and there was no changes in the pattern of consumption of CR Coils / Sheets in Pakistan, hence, the domestic industry did not suffer material injury due to contraction in demand and changes in the pattern of consumption of CR Coils/Sheets during the POI. The contention of the appellant, therefore, was not justified.

21.In view of the above, we are of the view that issues raised by appellant in its appeal before this Tribunal do not warrant any interference in the final determination report dated 13.01.2017, issued by the National Tariff Commission in the matter.

22.The appeal of the appellant being devoid of merits is, therefore, dismissed, leaving the parties to bear their own cost.

HBT/70/Tax(Trib.) Appeal dismissed.